Sue and Settle: Regulating Behind Closed Doors

Tuesday, March 6, 2018 - 3:30pm

What is Sue and Settle?

"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.  As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups.  These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the Clean Power Plan.

UPDATE – Sue and Settle Practice to End:  On October 16, 2017, EPA Administrator Scott Pruitt issued a directive to end “sue and settle” practices within the EPA.  The directive and accompanying memo includes new policies and procedures to increase transparency, public engagement, and accountability.  Major changes include providing advance notice to the public of any notice of intent to sue or proposed settlement agreement, allowing the public to weigh in on proposed or modified consent decrees and settlements, and to exclude attorney fees and litigation costs when settling with suing parties.  The directive incorporates recommendations and research conducted by the U.S. Chamber of Commerce, which can be found in the May 2017  “Sue and Settle Updated: Damage Done 2013-2016” report.

Database of Settlements: In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between January 20, 2009 and January 19, 2017.  The database of settlements, which is accessible HERE, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife.  Additionally, in October 2017, the Chamber received a FOIA request response from the EPA including Clean Air Act and Clean Water Act settlement agreements and consent decrees from between 2015 and 2016.

Recent Notices of Intent to Sue on EPA's Website

60-day NOI for EPA approval of 2013/14 OR zinc, arsenic, and selenium criteria. NOI alleges EPA violated ESA section 7 when EPA approved OR's acute and chronic zinc, chronic arsenic, and chronic selenium criteria and EPA failed to reinitiate consultation on acute and chronic zinc and chronic arsenic criteria. Also alleges EPA failed to consult (or alternatively failed to reinitiate consultation) on chronic selenium criteria.
Failure to review and revise certain National Emissions Standards for Hazardous Air Pollutants and New Source Performance Standards every eight years
Tulane Environmental Law Clinic NOI vs. EPA and Lousiana for failure to consult under ESA.
3/23/18CAA, State of California and the California Air Resources Board, State of Illinois, State of Maryland, State of New Mexico, State of Oregon, Pennsylvania Department of Environmental Protection, State of Rhode Island and State of Vermont
NOI for failure to enforce the 2016 Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills
3/13/2018CAA, Center for Biological Diversity, Center for Environmental Health, Sierra Club
Alleging failure to take action on 17 pending 2010 SO2 SIPs for nonattainment in 9 states and failure to issue findings of failure to submit regarding 2 overdue SO2 SIPs for nonattainment areas in 2 states.
For a full list of EPA's Notices of Intent to Sue, visit

What is New in Sue and Settle?

    June 2018

    See all -- Sue and Settle News Archive

    What are the Economic Implications of our Findings?

    Interactive List of All Sue & Settle Cases

    Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.

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